(2013) 231 A Crim R 413
Berryman v R [2017] NSWCCA 297
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
DS v R
[1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357
Source
Original judgment source is linked above.
Catchwords
(2013) 231 A Crim R 413
Berryman v R [2017] NSWCCA 297
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
DS v R[1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
PG v R [2017] NSWCCA 179
Judgment (10 paragraphs)
[1]
The applicant's personal circumstances and mitigating features
The applicant was born in June 1986. He was 33 years old at the time of the police raid and 34 when he stood to be sentenced. He had no previous convictions of any kind and presented with excellent references establishing a solid employment history, strong family support and an uneventful and supportive childhood. He had involved himself in some voluntary community service work.
In 2005 the applicant's younger sister was killed in a car accident. An older sister, Quynh, said that the family, including the applicant, never recovered from this tragedy. The applicant dropped out of the TAFE course in which he was enrolled and lost his job at a café "as a result of his depression over the loss of [his] sister." Even so, over the coming years he maintained a reasonably steady employment record in a variety of jobs.
In 2014 he commenced a relationship with a young woman, Julia, and the couple was married that same year. The relationship became difficult in 2015 when Julia decided to terminate a pregnancy and the applicant became deeply upset because he wanted to have children. They separated in May 2016 and ultimately divorced. Quynh said the applicant went into a "deep depression", became unemployed in 2017 and was placed on a mental health plan and began consulting a psychologist for treatment. The sister's opinion was confirmed in Dr Nielssen's report and by the applicant's self-reported history provided to the author of a Sentencing Assessment Report.
Despite their separation, the applicant's ex-wife provided a testimonial to the sentencing Court. Julia Nguyen was shocked at the applicant's arrest and said his involvement in the offences was "completely out of his character and certainly not consistent with my experience of him".
The sentencing Judge accepted that the evidence established the applicant to be a person of good character although he appeared to give that matter limited weight. [10] Both the absence of prior convictions and the applicant's good character were "mitigating features" pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act.
Dr Nielssen's report was not contested. The sentencing Judge appeared to accept the history and opinions offered in that report. The applicant told the psychiatrist that he commenced using drugs after his separation and divorce. His drug use escalated over time. He claimed he was not involved in selling drugs but stored the drugs for others. Dr Nielssen reviewed the records of the Campsie Medical Centre which confirmed diagnoses of anxiety and depression in 2016. He was described as "sad, lonely … helpless at times … suicidal in [the] past". The medical records also referred to the applicant's increase in substance use and gambling. Dr Nielssen diagnosed the applicant with a substance use disorder, in remission, and a depressive illness. He said the triggers for the depression were the death of his sister and his marriage breakdown.
The sentencing Judge set out this evidence in his judgment and seems to have accepted it. His Honour said at [27]:
"[i]t is established on the balance of probabilities that at the relevant time the offender was someone suffering from a drug addiction which is, of course, not a mitigating factor but is relevant to have regard to in considering what his likely role was in this criminal enterprise."
Judge Buscombe found the applicant had "good prospects of rehabilitation". [11]
[2]
Ground 1: The sentencing Judge erred in failing to take into account the applicant's depressive illness with regard to his culpability
[3]
Ground 2: The sentencing Judge erred in failing to take into account the applicant's depressive illness when seeking to further the sentencing purpose of general deterrence
[4]
Ground 4: The aggregate sentence is manifestly excessive
Each of the parties dealt with grounds 1 and 2 together. I propose to deal with those closely related grounds together with the general complaint that the sentence was manifestly excessive (ground 4). It is difficult, in this case, to disentangle the assertions of patent error (in grounds 1 and 2) from the argument that the sentence was infected with latent error. All of the grounds turn, directly or indirectly, on the sentencing Judge's approach to the uncontested evidence of the applicant's depressive illness.
I agree with the applicant's submission that the sentencing Judge accepted there was an indirect causal connection between the applicant's mental health condition, his drug use and his commission of the offences. This can be inferred from the remarks in the sentencing judgment although his Honour did not express that conclusion explicitly. However, the implicit acceptance of the evidence and the chronology of the applicant's decline into depression and drug abuse compelled such an acceptance. It is also consistent with the following exchange during argument:
"HIS HONOUR: [12] It seems almost a strong inference that the addiction is linked to depression which he had well before the commission of this offence, as I have understood the objective material correctly, arising out of a bereavement in an early stage in life in the family, and then the collapse of his marriage.
DHANJI: Absolutely."
Counsel for the respondent submitted (correctly) that "the question of whether there was a causal nexus between any mental illness and the commission of the offence is a question of fact" and that the applicant bore the onus of proof on the issue. There appears (now) to be no dispute that the evidence established such a connection and that the sentencing Judge proceeded on that basis.
[5]
Ground 1: the depressive illness and the applicant's moral culpability
The respondent submitted that the sentencing Judge, in the course of the proceedings on sentence, accepted the applicant's submission that his "moral culpability should be determined having regard to the fact that his offending had occurred in the context of his 'twin vulnerabilities' of his depression and drug addiction." The following discourse took place in the course of the submissions:
"DHANJI: Certainly, there were other things he could have done and at one stage it was suggested to him that there was treatment that he could receive. That didn't happen but that doesn't remove the reality of his situation and what he brings to the offending in terms of making determinations in terms of his moral culpability. Your Honour those are the submissions I make on behalf of the offender.
HIS HONOUR: Just before you sit down I'll just see if I've got any questions from reading your submissions. I don't think I do."
The respondent is correct to observe that the sentencing Judge did not gainsay the submission relating to the impact of the applicant's mental health issue on his moral culpability. On the other hand, he did not (overtly) accept or reject it.
Again, in his thorough judgment on sentence, delivered a couple of weeks later, Judge Buscombe did not deal with the submission explicitly. Nor did he express a quantitative conclusion as to the applicant's moral culpability. The authorities are reasonably clear that there is no obligation on a sentencing judge to refer to "moral culpability" in terms, [13] although it may be preferable to do so. His Honour clearly took the mental health issue and drug addiction into account in assessing the applicant's role. While this was a different question of fact which went to an assessment of the objective seriousness of the offence, rather than to the applicant's moral culpability, those two concepts are often interrelated and cannot be "divorced altogether" from each other. [14]
While it may have been better to have addressed the issue directly, at least in the context of the competing purposes of punishment or "sentencing factors", [15] I am not persuaded that his Honour failed to consider the question of the applicant's moral culpability.
Accordingly, I would not uphold Ground 1.
[6]
Grounds 2 and 4: general deterrence and manifest excess
While the sentencing judgment set out the relevant evidence in detail, it did not explain how the evidence and the applicant's depressive illness bore upon the important issue of deterrence. It is well established that, in sentencing an offender suffering from a psychiatric condition or intellectual disability, general and personal deterrence may be given less weight in the sentencing process and that such an offender may not be an appropriate vehicle through whom to send messages of deterrence. [16] Judge Buscombe would clearly have been aware of this.
However, there is nothing in the record to suggest that the significance attached to personal and general deterrence was ameliorated or otherwise affected by the applicant's mental health issue. While it led to a more favourable finding concerning the applicant's role, that finding was based on the uncontradicted history provided by the applicant rather than by reference to his diagnosed and pre-existing depressive illness. When it came to the issue of deterrence and the purpose of punishing those involved in drug trafficking, Judge Buscombe said:
"62 I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim, in this instance the community, and rehabilitation of the offender.
63 Prohibited drugs are causing much damage in our community, destroying lives, families and the very fabric of our society. Those who involve themselves in the supply of large commercial or commercial quantities of such drugs must expect to receive significant sentences in order to deter the offender, but also to deter others in our community who might be tempted to involve themselves in such offending."
The sentencing Judge carefully set out the evidence relating to the applicant's depressive illness, its causes, treatment and prognosis, and the interaction between the illness and the applicant's dependence on drugs. There is little doubt that his Honour accepted the evidence. It is clear from his detailed recounting of the evidence that his Honour took the evidence into account in the sentencing process. However, the remarks relating to general deterrence did not appear to give effect to well-established principles relating to the impact of an offender's mental health on the balance to be struck in the application of the purposes of punishment and the severity of a sentence in each individual case.
While the respondent correctly submitted that the existence of a mental health issue does not result in an automatic reduction in an otherwise appropriate sentence, this was not a case where the issue gave rise to concerns as to future dangerousness. On the contrary, Judge Buscombe looked favourably on the applicant's prospects of rehabilitation.
When the matters favourable to the applicant - including his limited role - are taken into account, and full effect given to the impact of mental illness on the prominence of general deterrence to the purposes of punishment in the applicant's case, I am driven to the conclusion that either ground 2 or 4 must be upheld. That is, I have concluded that the Judge erred either by failing to give effect to those principles or by imposing a sentence that was beyond a legitimate discretionary range.
In reaching those alternative conclusions, I am conscious of the wide discretion entrusted to the sentencing Judge and that it is not for this Court to intervene merely on the basis that it would have imposed a less severe sentence. The Court must conclude that the sentencing discretion miscarried and that the sentence was plainly wrong or unjust. [17]
Either ground 2 or 4 has been established, and the sentencing discretion miscarried. I would proceed to re-sentence.
[7]
Ground 3: The sentencing Judge erred in the assessment of objective seriousness
As it was finally pursued, this ground was limited to an impeachment of the finding relating to the objective seriousness of sequence 23, the offence of supplying a commercial quantity of GBL. The sentencing Judge found that this offence fell "a little below the mid-range of objective seriousness." The applicant submitted it fell "substantially below the mid-range of objective seriousness." He pointed to the applicant's limited role, his lack of knowledge of the quantity of GBL and the absence of evidence (or finding) as to the precise quantity.
The respondent submitted the finding was open to the sentencing Judge given the quantities involved, the position of trust in which the applicant was held, and by his knowledge that he was storing "very considerable quantities of different types of drugs." It is also well established that this Court is generally reluctant to interfere with a primary Judge's evaluative finding concerning the objective seriousness of an offence.
Because the Court must re-sentence the applicant, it is not necessary to resolve this ground. Even though I prefer the applicant's categorisation of the offence as falling "substantially below" the putative mid-range offence, I would not uphold this ground of appeal, given the deference ordinarily paid to a sentencing Judge's finding concerning objective seriousness. It is open to the Court, in re-sentencing, to reach a different conclusion and I propose to consider the matter afresh in the process of re-sentencing.
[8]
Re-sentencing
While the applicant stored a variety of different types of drugs, and the quantities involved were substantial, the role of the applicant was a limited one. It involved storing the drugs on others' behalf for a relatively short period of time. His motivation was to feed his drug addiction which was closely related to the depressive illness which had its aetiology in his sister's death some years earlier, the termination of his wife's pregnancy, which the applicant did not support, and the consequent breakdown of his marriage.
However, as the respondent submitted, the period during which the applicant warehoused the drugs was more than fleeting and other members of the network came and went from the premises during the period the applicant stored the drugs. While the applicant may not have known the precise quantities of the various drugs, he must have known that the quantities were very substantial and commercial in nature. The applicant also knew that those he was assisting were involved in a serious and commercial drug trafficking enterprise.
The offences were objectively serious but, as the sentencing Judge noted, focussing on the role the applicant played, and what he actually did, placed the seriousness of the offending in a different context to the ordinary case. The extent of his knowledge of the quantities was doubtful and his motive was to feed a drug dependence. In my assessment, each of the offences carrying a standard non-parole period fell well below the mid-range of objective seriousness for offences of their kind.
The moral culpability of the applicant is somewhat diminished by his mental health issues, but his drug dependence provided little by way of mitigation and he clearly knew what he was doing, who he was assisting, and that what he was doing amounted to a serious breach of the criminal law.
Because of the pleas of guilty and the assessment of the objective seriousness as falling below the middle of the range for offences under the relevant provisions, the standard non-parole periods do not directly apply. However, they remain important guideposts to the proper exercise of the sentencing discretion.
Further, two of the offences carried maximum penalties of life imprisonment and a third carried a maximum penalty of 20 years. These maximum penalties, as well as the standard non-parole periods, are important indications of the seriousness of the offences and the legislature's clear intention that severe penalties of imprisonment are to be imposed for those involved in commercial and large commercial supply offences.
I have taken into account the applicant's good character, his lack of prior convictions and agree with the sentencing Judge's assessment that the applicant has good prospects of rehabilitation. The strong family support he enjoys is a positive factor in assessing the likelihood that he will offend in the future. I find that he is unlikely to do so.
While some weight must be given to deterrence, both personal and general, the applicant's mental health issues and his personal circumstances are such that I would give general deterrence less weight than would usually be the case in matters involving commercial drug supply. On my reading of the material, any specific deterrent impact of the punishment has been achieved by the incarceration since 2020 of a relatively young man otherwise of good character. As the sentencing Judge found, he has good prospects of rehabilitation.
Like the sentencing Judge I would find special circumstances to ensure the applicant has an extended period on parole. This will facilitate his rehabilitation and assist him to deal with his mental health issues and not relapse into the abuse of illegal drugs. In making the finding, I have taken into account that the applicant has never been in prison before and may have some difficulties in re-establishing himself in the community.
I have considered the matters on the Form 1 in accordance with authority. [18] They are relevant to the weight to be afforded to personal deterrence and retribution although I agree with the sentencing Judge that those matters should have little impact on the total sentence.
I would take a slightly different approach to the structure of the sentence. I would impose an aggregate sentence for the four substantive offences (sequences 9, 15, 22 and 23) and deal with the remaining matters on the s 166 certificate under s 10A of the Crimes (Sentencing Procedure) Act. Those final eight matters do not warrant a full-time gaol sentence. While those sentences were of very short duration and, in a sense, notional, I am not satisfied that a sentence of imprisonment is the only appropriate sentence. [19]
As to concurrency and accumulation, there is a degree of notional accumulation in the sentence I propose. This reflects the four different types of drugs to which the offences relate. However, the aggregate sentence reflects that the criminality of all the offences was essentially the same and took place within the same timeframe and peculiar circumstances.
For the four substantive offences, after applying a 25% sentencing discount for the early pleas of guilty and some rounding of the numbers, I would indicate the following sentences for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act:
1. Sequence 9 (supply large commercial quantity of cocaine) - 5 years and 3 months with a non-parole period of 3½ years.
2. Sequence 15 (supply 3,4-methylenedioxy-methylamphetamine) - 9 months.
3. Sequence 22 (supply large commercial quantity of methylamphetamine) - 5 years and 3 months with a non-parole period of 3½ years.
4. Sequence 23 (supply commercial quantity of gamma butyrolactone) - 3 years with a non-parole period of 2 years.
I would impose an aggregate sentence of 7½ years with a non-parole period of 5 years. The sentence would be back-dated to the day the applicant went into custody.
[9]
Orders
I propose the following orders:
1. Application for leave to appeal granted.
2. Appeal allowed.
3. The aggregate sentence imposed in the District Court on 21 May 2021 is quashed and in lieu thereof:
1. For sequences 9, 15, 22 and 23, the applicant is sentenced to an aggregate sentence of 7½ years commencing on 16 April 2020 and expiring on 15 October 2027, with a non-parole period of 5 years expiring on 15 April 2025.
2. For sequences 41, 42, 43, 44, 45, 46, 47 and 48, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant is convicted but there is no further penalty.
3. The applicant is eligible for release to parole at the conclusion of the non-parole period.
[10]
Endnotes
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32.
R v Chu [2021] NSWSDC 328 at [74].
Ibid at [56].
Contra Glare v R [2015] NSWCCA 194 at [12], PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [71], [76], Berryman v R [2017] NSWCCA 297 at [29], Elsaj v R [2017] NSWCCA 124 at [56], Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [138].
Statistics maintained by the Judicial Commission of NSW show that slightly less than 1% of around approximately 41,500 cases resulted in a gaol sentence. Only three of those were first offenders.
R v Chu [2021] NSWSDC 328 at [6].
Ibid at [61].
R v Chu [2021] NSWDC 328.
Subsequent references to percentages relate to the purity of the relevant drug.
R v Chu [2021] NSWDC 328 at [32].
Ibid at [55].
The transcript in the appeal book attributes this statement to Senior Counsel (as his Honour then was), but it seems clear from Mr Dhanji's response that these words were spoken by Judge Buscombe. Two similar misattributions occur later on the same page of the transcript. For example, Senior Counsel is attributed with the words "Just before you sit down I'll just see if I've got an questions from reading your submissions".
The authorities establish there is no obligation to do so: see, for example, Prince v The Queen [2020] NSWCCA 268 at [47].
Egan v R [2017] NSWCCA 206 at [37] and see the extensive discussion by Beech-Jones CJ at CL in DS v R; DM v R [2022] NSWCCA 156.
Cf DS v R; DM v R [2022] NSWCCA 156 at [93].
See, for example, R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [254] (Wood CJ at CL), R v Israil [2002] NSWCCA 255 at [18]-[25]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) and R v Champion (1992) 64 A Crim R 244 at 254-255 (Kirby P).
Dinsdale v The Queen (2000) 202 CLR 321 at 329, 340; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357 at 370-371; [2005] HCA 25 and Lowndes v The Queen (1999) 195 CLR 665 at 678-679; [1999] HCA 29.
See, for example, Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413.
Crimes (Sentencing Procedure) Act, s 5(1).
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 February 2023
Solicitors:
Inner West Solicitors Pty Ltd (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/113017
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Citation: [2021] NSWDC 328
Date of Decision: 21 May 2021
Before: Buscombe DCJ
File Number(s): 2020/113017
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant appealed against an aggregate sentence of 9 years' imprisonment, with a non-parole period of 6 years, imposed on 21 May 2021 in the District Court for four offences of supplying prohibited drugs (including two large commercial quantities, and one commercial quantity). The applicant asked that six offences be taken into account on a Form 1 (involving dealing with the proceeds of crime, possession of prohibited drugs and possession of restricted substances). A certificate under s 166 of the Criminal Procedure Act 1986 (NSW) included eight summary drug possession offences. The applicant received a 25% discount for his early guilty pleas. The applicant was abusing drugs at the time and stored the drugs on behalf of his dealers. His drug use and a depressive illness were interrelated and arose when his former wife elected to terminate a pregnancy and the couple then separated.
The issues on appeal were whether the sentencing Judge erred in failing to take into account the applicant's depressive illness when assessing moral culpability (ground 1) and the relevance of that illness to general deterrence (ground 2), whether his Honour erred in assessing the objective seriousness of one of the offences (ground 3, as confined in argument) and whether the sentence was manifestly excessive (ground 4).
The Court held (per Hamill J, Meagher JA and Harrison J agreeing), allowing the appeal and re-sentencing the applicant:
As to the depressive illness and moral culpability (ground 1)
(1) Although the sentencing Judge did not expressly address the applicant's depressive illness and its impact on the assessment of moral culpability, he was not required to do so in those terms. His Honour considered the applicant's mental health when assessing his role in the offences, a matter which cannot be divorced entirely from the issue of moral culpability: [28]-[32] (Hamill J); [1] (Meagher JA); [2] (Harrison J).
Prince v The Queen [2020] NSWCCA 268, Egan v R [2017] NSWCCA 206 and DS v R; DM v R [2022] NSWCCA 156 applied.
As to general deterrence and manifest excess (grounds 2 and 4)
(2) The sentencing Judge did not refer to well-established principles regarding the impact of mental illness on the significance of general deterrence, although his Honour was no doubt aware of those principles. The remarks relating to general deterrence applied generally to commercial drug supply but did not allude to the depressive illness. The applicant had no criminal history and good prospects of rehabilitation, did not present a danger to the public, played a limited role in the offences, was not motivated by greed and committed the offences while suffering from a mental illness. In the particular circumstances, the aggregate sentence was beyond the legitimate discretionary range. Either the sentence imposed manifested latent error (ground 4) or there was a failure to ameliorate the impact of general deterrence (ground 2): [33]-[39] (Hamill J); [1] (Meagher JA); [2] (Harrison J).
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, R v Israil [2002] NSWCCA 255, DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep), R v Champion (1992) 64 A Crim R, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 and Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 applied.
As to objective seriousness (ground 3)
(3) It was not necessary to resolve ground 3 but reference was made to the deference ordinarily paid to sentencing Judges' evaluative findings on objective seriousness: [40]-[42] (Hamill J); [1] (Meagher JA); [2] (Harrison J).
As to re-sentencing
(4) The applicant was re-sentenced to a term of 7 years and 6 months' imprisonment, with a non-parole period of 5 years. For the matters on the s 166 certificate, the applicant was convicted without further penalty: [43]-[56] (Hamill J); [1] (Meagher JA); [2] (Harrison J).
JUDGMENT
MEAGHER JA: I agree with Hamill J.
HARRISON J: I agree with Hamill J.
HAMILL J: On 21 May 2021, Quoc Toan Chu ("the applicant") was sentenced in the District Court to an aggregate term of 9 years' imprisonment with a non-parole period of 6 years: R v Chu [2021] NSWSDC 328. He was sentenced by Judge Buscombe in relation to four counts of drug supply. Each of the offences was committed on 15 April 2020 at Yagoona and their sequence numbers and applicable penalties (leaving aside available maximum fines) were as follows:
1. Supplying a large commercial quantity (3,322.50 grams) of cocaine [sequence 9, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years].
2. Supplying 19.16 grams of 3,4-methylenedioxy-methylamphetamine [sequence 15, carrying a maximum penalty of 15 years' imprisonment].
3. Supplying a large commercial quantity (7,418.36 grams) of methylamphetamine [sequence 22, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years].
4. Suppling a commercial quantity (2,047 grams) of gamma butyrolactone ("GBL") [sequence 23, carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years).
The applicant asked that six offences, on three separate Form 1 documents, [1] be taken into account in sentencing. Those offences were dealing with the proceeds of crime (sequence 10, taken into account on sequence 9), two counts of possession of a prohibited drug (sequences 3 and 4, taken into account on sequence 22) and three counts of possessing a restricted substance (sequences 49, 50 and 51, taken into account on sequence 15). A certificate under s 166 of the Criminal Procedure Act 1986 (NSW) set out a further eight summary offences (sequences 41 to 48) for which the applicant also stood to be sentenced. Those offences involved the possession of small quantities of prohibited drugs.
Judge Buscombe set out the indicative sentences pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) at paragraphs [69]-[73] of his judgment:
"69 On the supply large commercial quantity of cocaine offence and having regard to the offence on the Form 1, I record an indicative sentence of six years' imprisonment with an indicative non-parole period of four years.
70 On the supply large commercial quantity of methylamphetamine offence, having regard to the offence on the relevant Form 1, I record an indicative sentence of six years' imprisonment with an indicative non-parole period of four years.
71 On the supply commercial quantity of gamma butyrolactone offence I record an indicative sentence of four years' imprisonment with an indicative non-parole period of two years and eight months.
72 On the supply 19.6 grams of 3,4-methylenedioxy-methylmphetamine and having regard to the offence on the Form 1, I record an indicative sentence of two years' imprisonment.
73 In relation to each offence on the s 166 certificate I record the following indicative sentences. Charge sequence 41, two months imprisonment: Charge sequence 42, two months imprisonment; Charge sequence 43, three months imprisonment; Charge sequence 44, six months imprisonment; Charge sequence 45, three months imprisonment; Charge sequence 46, four months imprisonment; Charge sequence 47, two months imprisonment; Charge sequence 48, one month imprisonment."
His Honour then announced the aggregate sentence of 9 years with a non-parole period of 6 years which commenced on 16 April 2020. The non-parole period will expire on 15 April 2026. [2] His Honour indicated earlier that the applicant was entitled to a 25% sentencing discount because of his early plea of guilty. [3] It is not completely clear whether this discount was applied to the indicative sentences or to the aggregate sentence, although the numbers suggest it was applied to the aggregate sentence. [4] It might also be thought that indicative sentences of full time imprisonment for the simple possession charges were unusually stern. [5] However, those sentences were no doubt appropriately pragmatic and had no impact on the aggregate sentence. The applicant correctly focussed on the aggregate sentence and the pertinent issues of fact and law that led his Honour to impose that sentence. There is nothing to suggest that the simple possession charges impacted on the total aggregate sentence; Judge Buscombe said explicitly that the Form 1 offences had "limited impact" on the sentence, [6] and it was implicit that the extent of the notional accumulation in the aggregate sentence was "somewhat limited." [7]
The applicant seeks leave to appeal against the aggregate sentence and raises the following grounds of appeal:
(1) The sentencing Judge erred in failing to take into account the applicant's depressive illness with regard to his culpability.
(2) The sentencing judge erred in failing to take into account the applicant's depressive illness when seeking to further the sentencing purpose of general deterrence.
(3) The sentencing judge erred in the assessment of objective seriousness.
(4) The aggregate sentence is manifestly excessive.
The parties each filed written submissions and the appeal was heard on 12 September 2022. In view of this Court's judgment in DS v R; DM v R [2022] NSWCCA 156, the applicant pressed ground 3 only in relation to the offence in sequence 23. In other words, an earlier submission that the sentencing Judge erred in failing to consider the applicant's depressive illness in assessing the objective seriousness was not pursued.
I would grant leave to appeal and allow the appeal. I would sentence the applicant to an aggregate sentence of 7½ years with a non-parole period of 5 years. These are my reasons for favouring those orders. In view of the publication of the sentencing judgment on NSW Caselaw, it will not be necessary to repeat the details of the facts or his Honour's thoughtful reasons.